Hispanics United of Buffalo -- Protecting Pre-Concerted Activity

On December 14, 2012, the NLRB issued a Decision and Order in Hispanics United of Buffalo, Inc. and Carlos Ortiz, Case 03-CA-027872.  It affects an employer's right to take action against employees based on their social media posts. 

Ms. Cruz-Moore worked at a domestic violence shelter in Buffalo.  She texted to her co-worker, Ms. Cole-Rivera, that co-workers did not do their jobs.  In fact, the two employees texted and telephoned one another frequently, both during and after work.  Eventually, Ms. Cruz-Moore told Ms. Cole-Rivera that she was going to tell the boss about the lack of work.  Ms. Cruz-Moore did not welcome a complaint about her work.  She told workers, via Facebook, that Ms. Cruz-Moore complained about them, and asked, "My fellow coworkers how do u feel?" 

Co-workers responded to the Facebook post.  They defended their work efforts. 

Ms. Cruz-Moore claimed the workers lied about her and caused her a heart attack.  She took a copy of the Facebook posts to the boss who fired the employees for bullying and harassment.  The shelter had a "zero tolerance" for such conduct.  Thus, the co-workers were fired. 

At this stage of the proceeding, the question was whether the postings constituted concerted activity protected by the NLRA. 

Concerted activity is "engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself."  Moreover, it includes those "circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management." 

The NLRB concluded that the acts of the co-workers was protected under these definitions of concerted activity.  Ms. Cole-Rivera alerted co-workers about the complaint, said she was tired of the criticism, and asked co-workers for their views.  The employees were taking the first steps toward group action to defend themselves against the accusations. 

It did not matter that Ms. Cole-Rivera did not tell co-workers that Ms. Cruz-Moore planned to tell management.  It was the objective of Ms. Cole-Rivera to develop a group defense to the allegations.  According to the NLRB, the law protects discussions about job performance. 

I don't know if Ms. Cruz-Moore is still at the shelter.  I don't think she had enough work to do with all of the complaining she did.  And it doesn't appear that she suffered a heart attack either.  Perhaps she should quit whining and started working. 

The supervisor wasn't the brightest bulb in the chandelier either.  Firing employees for objecting to a co-worker's gossip about their performance is a bit over the top.  And zero tolerance policies are, in my opinion, zero intelligence policies.  It eliminates any common sense.  It is an attempt to avoid examining facts and resolving issues. 

In the end, the court protected Facebook posts between feuding co-workers, even where the employer had not yet contemplated taking any action. 

I hope your social media policies are up-to-date.